A Federal Judge in Virginia has upheld President Trump’s second ‘travel ban’ Executive Order, in a ruling which flatly contradicts rulings made previously by two other Federal Judges in Hawaii and Maryland.
This comes shortly after President Trump himself has said that he intends to fight for the Executive Order all the way up to the Supreme Court.
The reasoning of U.S. District Judge Anthony Trenga, the Federal Judge in Virginia, is crisp and clear. He specifically refused to go beyond the text of the Executive Order itself in order to find a discriminatory purpose in the Order which is denied by its text. He also reaffirmed that the Order was made by the President within his constitutional power and authority.
Given the revisions in EO-2, the question is now whether the President’s past statements continue to fatally infect what is facially a lawful exercise of presidential authority. In that regard, the Supreme Court has held that “past actions [do not] forever taint any effort on [the government’s] part to deal with the subject matter. . . . District courts are fully capable of adjusting preliminary relief to take account of genuine changes in constitutionally significant conditions.” McCreary, 545 U.S. at 848. This Court is no longer faced with a facially discriminatory order coupled with contemporaneous statements suggesting discriminatory intent. And while the President and his advisors have continued to make statements following the issuance of EO-1 that have characterized or anticipated the nature of EO-2,20 the Court cannot conclude for the purposes of the Motion that these statements, together with the President’s past statements, have effectively disqualified him from exercising his lawful presidential authority…..
To an English eye this is sound reasoning. Based on the authorities Judge Trenga cited in his Judgment it is also the preferred reasoning in the US of the Supreme Court.
On that basis I am now sure that the Executive Order will be upheld on appeal even if takes the Supreme Court to do it, and that the rulings of the Federal Judges in Hawaii and Maryland, which in what looked to me like clear cases of Judicial overreach were obliged to look beyond the text of the Executive Order in order to find some discriminatory purpose in it, will be set aside on appeal.